AKOUM -v- THE KING [2023] WASCA 102 (5 July 2023)

The learned sentencing judge imposed a sentence that was, in all of the circumstances, in breach of the principle of parity insofar as it gave rise to a legitimate sense of grievance on the part of the appellant, having regard to:

(a) the sentence imposed upon the appellant's co‑offender, Mr Dandachi, in respect of the comparable count upon [the] Indictment; and

(b) the overall culpability of the appellant as distinguished from that of Mr Dandachi.

1. By this ground, the appellant alleges an infringement of the parity principle in the sense that the sentence imposed on the appellant was not disparate or was insufficiently disparate from that imposed upon Mr Dandachi. As reflected in the particulars to the ground and in the appellant's submissions, he contends that the infringement of the parity principle is demonstrated whether the relevant comparison is between:

(a) the offence committed by the appellant and count 4 on Mr Dandachi's indictment (being the offence said to be most factually comparable to the offence committed by the appellant); or
>
> (b) the appellant's offending and Mr Dandachi's overall offending.

2. If comparison (a) is used, the disparity in favour of Mr Dandachi and against the appellant is 6 months' imprisonment. If comparison (b) is used, the disparity in favour of the appellant and against Mr Dandachi is 8 months' imprisonment.
3. As noted by Hall JA, the parity principle has been explained by the High Court in Lowe v The Queen;[1] Postiglione v The Queen;[2] and Green v The Queen.[3]
4. As explained in Green,[4] the foundation of the parity principle is the norm of equality before the law, which requires that its application be governed by a consideration of substance rather than form. Accordingly, formal identity of charges against offenders whose sentences are compared is not a necessary condition of its application. While there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes, these difficulties do not exclude the operation of the parity principle. Thus, the parity principle may be applied to offenders who are engaged in the same criminal enterprise, but are charged with different offences.
5. The question as to what is the relevant comparison for the purposes of the application of the parity principle was addressed in detail by this court in Higgins v The State of Western Australia.[5]
6. As the judgments in Higgins show, the norm of equal justice may be engaged in relation to the sentences imposed for a single common offence or the total offending. What is required is an evaluation of all of the facts and circumstances of the offending and the components of the sentences imposed upon the offenders, including how the sentences were affected by the application of all relevant sentencing principles, including, for example, the totality principle. The evaluation may also be affected by the maximum penalty for relevant offences. We are mindful in this case that the maximum penalty for the offences under consideration is, having regard to the serious nature of the conduct proscribed by the offences, low.
7. The exercise of comparison may be nuanced[6] and encompasses all of the legal and practical effects of a sentence imposed on an offender.[7] We reiterate that the cornerstone is the norm of equal justice and the process is individualised and governed by substance and not form.
8. In the present case, the better approach is to compare the overall culpability of the appellant and that of Mr Dandachi. To do otherwise is to adopt too narrow a focus. Equality before the law in this case requires a wider view than a comparison between the offence committed by the appellant and count 4 of the offences committed by Mr Dandachi. Such a comparison would not have proper regard to the fact that the appellant and Mr Dandachi were part of the same criminal enterprise, and that Mr Dandachi's criminal culpability was, as Staude DCJ found, 'much higher' than the appellant's. This finding is unchallenged in this appeal and is plainly correct.
9. Mr Dandachi, over a period of approximately six weeks, committed three offences in which he was the principal offender. These offences concerned the laundering of over $4 million. Count 4 in the indictment against Mr Dandachi alleged that between 11 and 13 March 2019, he aided, abetted, counselled or procured the appellant to receive and make deposits totalling $1,498,550. In all, Mr Dandachi was involved in the laundering of approximately $5.5 million.
10. Mr Dandachi had a more senior role than the appellant in the hierarchy of the criminal enterprise. Mr Dandachi, in effect, recruited the appellant. It is significant that Mr Dandachi was the appellant's employer. The sentencing judge accepted that there was no evidence that the appellant would be rewarded in any particular way, but he would have, at least, expected an advancement in his employment with Mr Dandachi.
11. As for their personal circumstances, both the appellant and Mr Dandachi were first offenders and had very favourable prospects of rehabilitation. For each of them, personal deterrence was not a matter of significance, although, of course, general deterrence was an important sentencing consideration. The appellant derived some mitigation from the fact that he would serve a term of imprisonment away from his family, who live in Sydney.
12. A number of mitigating factors favourable to Mr Dandachi did not apply to the appellant, namely that:

(a) he was genuinely remorseful;
>
> (b) two of his four children have been diagnosed with autism spectrum disorder;
>
> (c) his incarceration would cause significant hardship to his wife;
>
> (d) he received a reduction in his sentence for entering into an undertaking to cooperate with the prosecution of the appellant, pursuant to s 16AC of the Crimes Act 1914 (Cth); and
>
> (e) he entered his pleas of guilty at an earlier stage in the proceedings compared with the appellant.

13. Notwithstanding these factors favourable to Mr Dandachi that did not apply to the appellant, in our opinion, the eight‑month difference between the sentences imposed upon the appellant and Mr Dandachi, given Mr Dandachi's much greater level of criminal culpability, was insufficient and gives rise to an objectively legitimate or justifiable sense of grievance on the part of the appellant because his offending, serious as it undoubtedly was, was not of the same magnitude of seriousness as

that of Mr Dandachi. The insufficient disparity is also evident where the comparison is made between the periods to be served by Mr Dandachi and the appellant before their release on recognisance. In Mr Dandachi's case, he will be released after serving 12 months' imprisonment. On the other hand, the appellant will be released after serving 6 months' imprisonment.

1. We are satisfied, after evaluating all of the relevant facts and circumstances concerning the appellant and Mr Dandachi, that there is insufficient disparity between the appellant's sentence and that imposed upon Mr Dandachi. The degree of disparity is marked and gives rise to a legitimate or justifiable sense of grievance on the appellant's part, or an appearance in the mind of an objective observer that justice has not been done as between the appellant, on the one hand, and Mr Dandachi, on the other.
2. For these reasons, ground 2 has been made out.

1. It is unnecessary to repeat all of the relevant facts and circumstances of the appellant's offending, including his personal circumstances. In resentencing the appellant, it is necessary for this court to have regard to the mandatory considerations referred to in s 16A(2) of the Crimes Act, insofar as they apply to the present case.
2. Of course, in resentencing the appellant, this court must have regard to the parity principle.
3. In our opinion, no sentence other than immediate imprisonment was appropriate.
4. Having regard to all relevant facts and circumstances and all relevant sentencing principles, including the mitigating circumstances and the operation of the parity principle, and bearing in mind the need for general deterrence, the appropriate sentence to impose on the appellant is the sentence referred to in [2] of these reasons.

1. On 29 March 2023 orders were made, by majority, allowing this appeal against sentence and resentencing the appellant. I would have dismissed the appeal. The following are my reasons.
2. The appellant was convicted on his plea of guilty of one count of dealing with money or other property, it being reasonable to suspect that such money or other property was proceeds of crime and, at the time of dealing, the value of the money or property was $100,000 or more, contrary to s 400.9(1) of the Criminal Code Act 1995 (Cth) (Code). He was sentenced to 12 months' immediate imprisonment to be released on a recognisance to be of good behaviour in the sum of $5,000 after serving 6 months of the term.
3. There are two grounds of appeal, both of which relate to the proper application of the parity principle. The first ground contends, in effect, that the learned sentencing judge misapplied the parity principle by taking into account an irrelevant consideration, namely that if he did not impose an immediate sentence of imprisonment on the appellant it would cause another related offender to have a justifiable sense of grievance. The second ground contends that the sentence imposed on the appellant breached the parity principle because, when compared to the sentence imposed on a related offender, it gave rise to a justifiable sense of grievance on the part of the appellant.
4. In my view neither of the grounds of appeal should succeed. The learned sentencing judge did make the impugned comment that is subject of ground 1, but it is apparent from the sentencing remarks when read as a whole that this was not a material factor in the decision to impose an immediate sentence of imprisonment on the appellant. As regards ground 2, the offence committed by the appellant and the offences committed by the related offender involved different criminal conduct. Though both offences arose in the context of the same criminal enterprise and thus the parity principle can apply, the differences between the offences are significant and make any meaningful comparison difficult. Having regard to those differences, and to differences in personal circumstances, it is not apparent that there is a basis for a justifiable sense of grievance on the part of the appellant. I would have granted leave to appeal on both grounds but dismissed the appeal.

1. The facts of the appellant's offending were not in dispute, either at sentencing or on the appeal. They are as follows.
2. In 2019, the Australian Federal Police began an investigation into the activities of a money laundering syndicate operating in Sydney and Perth. The syndicate was alleged to be laundering proceeds of crime by establishing shell companies and then opening bank accounts in the name of those companies with Australian banks who offered express cash deposit facilities.[8]
3. Express deposit facilities are essentially post box‑style deposit boxes where businesses can drop pre‑bagged cash for deposit into bank accounts written by the business on the bag. The purpose of these facilities is to allow genuine businesses to deposit cash without needing to queue at a branch or undergo an identification procedure each time a deposit is made. Members of the money laundering syndicate took advantage of these facilities to deposit large amounts of cash into bank accounts for shell companies without needing to provide identification.[9]
4. As of April 2019 the appellant was working for a car washing business operated by Faek Dandachi. The business involved cleaning cars for hire car companies and had operations at airports in several states, including Western Australia. The appellant lived and worked in Sydney.
5. On 22 April 2019, the appellant travelled to Perth from Sydney on the instructions of Dandachi. In Perth the appellant received large amounts of cash that were delivered to the car washing business premises in backpacks or suitcases. The cash was placed into express deposit bags. Over the next three days, the appellant attended ANZ, Commonwealth and Westpac bank branches in Cloverdale, Belmont and Cannington and made cash deposits. Most of the deposits were made by express deposit, but three were made by over-the-counter deposits.[10]
6. The accounts into which the cash was deposited were controlled by a man named Gagandeep Pahwa and his associates. Pahwa was charged by New South Wales police in July 2019 with a number of State‑based organised crime and money laundering offences.[11]
7. A total of 51 deposits were made by the appellant over a three‑day period from 23 April 2019 to 26 April 2019. The total amount deposited was $1,762,480. The details of those deposits are contained in the following table:[12]

1. Shortly after making the deposits, the appellant departed Perth and returned to Sydney. He was arrested on 26 November 2019 in Sydney and was extradited to Western Australia. He was granted bail and remained on bail until being sentenced.[13]
2. There were originally two money laundering charges against the appellant. The other charge related to similar conduct alleged to have occurred on 13 March 2019. That charge was discontinued following negotiations between the appellant's legal representatives and the Crown. Those negotiations also resulted in the appellant pleading guilty to the charge that is the subject of this appeal. The circumstances in which the plea of guilty was entered were set out in the Crown's written submissions on the sentence in the court below. The appellant has not sought to dispute those circumstances. They can be summarised as follows.[14]
3. After being arrested on 26 November 2019 and extradited to Western Australia, the appellant was committed for trial on 20 November 2020. On 4 June 2021, the charges against the appellant were listed for a 10‑day trial to take place in the District Court between 11 ‑ 24 October 2022. On 21 September 2022, the appellant's lawyers approached the Crown with a resolution proposal, namely that the appellant would plead guilty to the second charge on the indictment if the first charge alleging offending in March 2019 was discontinued. On 29 September 2022, the Crown accepted that offer. The proposal of a plea took place in circumstances where the Crown had approached the appellant's lawyers with a plea offer on 17 April 2020, which was rejected on 21 July 2021 without a counter-offer. Approaches by the Crown on four subsequent occasions ‑ to explain the Crown's case and invite discussions about ways to resolve the matter or, alternatively, how to reduce the issues in dispute for the trial ‑ were not responded to.[15]

1. The appellant was 28 years old at the time of sentencing. He was 24 years old at the time of the offending. He was raised in Lebanon and completed high school there before moving to Australia to study. He had completed a degree in biomedicine and had hopes of qualifying as a dentist.[16]
2. The appellant was married in 2019, after the offence, and has one child. Both his wife and daughter live in Sydney.[17]
3. The appellant has no prior criminal record. Character references attested to his previous good character. A privately‑commissioned psychological report noted that he had been diagnosed with depression and anxiety.[18]

1. On 10 February 2021, Dandachi pleaded guilty to four counts, being three counts of dealing with money or other property reasonably suspected of being the proceeds of crime, contrary to s 400.9(1) of the Code, and one count of aiding, abetting, counselling or procuring the commission of an offence by the appellant to deal in money or other property reasonably suspected of being the proceeds of crime, contrary to s 11.2(1) and s 400.9(1) of the Code.[19]
2. Dandachi's offences related to other deposits of a similar nature undertaken by him (counts 1 ‑ 3) and the appellant (count 4) between 29 January 2019 and 13 March 2019. These deposits were made for the same syndicate, involved the same procedure and were part of the same criminal enterprise.
3. Dandachi received cash at his business premises at Perth Airport. The cash was delivered by persons who identified themselves by using a token, being a $5 note with a previously communicated serial number. On receipt of the cash, Dandachi would count it and place it into express deposit bags. He would advise the syndicate of the total amount before attending bank branches to deposit the cash. He would then deposit the cash into accounts in the names of shell companies. He was not involved in the shell companies and had no further involvement once the funds were deposited.[20]
4. Count 1 related to deposits made by Dandachi between 29 January 2019 and 30 January 2019. The total amount of these deposits was $800,000.[21]
5. Count 2 related to deposits made by Dandachi between 12 February 2019 and 14 February 2019. The total amount of these deposits was $870,000.[22]
6. Count 3 related to deposits made by Dandachi between 25 February 2019 and 28 February 2019. The total amount of these deposits was $2,432,760.[23]
7. Count 4 alleged that between about 11 March 2019 and 13 March 2019, Dandachi aided, abetted, counselled or procured the appellant to receive and make deposits totalling $1,498,550. It should be noted at this point that this is not the same criminal conduct as is the subject of the appellants' offence. Although both men were said to be involved in the March and April deposits, only Dandachi was convicted of the March deposits and only the appellant was convicted of the April deposits.[24]
8. Notwithstanding that count 4 and the offence that is the subject of this appeal relate to different criminal conduct, it has been suggested that those two offences are relevantly comparable. For that reason, I will refer to the facts of count 4 in more detail.
9. On 12 March 2019, Dandachi and the appellant travelled from Sydney to Perth. Later that evening, Dandachi departed Perth and returned to Sydney. While in Perth, the appellant, assisted by or instructed by Dandachi, received a large amount of cash at Dandachi's business at Perth Airport. Dandachi and/or the appellant, on Dandachi's instructions, together or separately, counted and put the cash into bank deposit bags. There was a total of 39 bags, 20 for the ANZ Bank and 19 for the Commonwealth Bank. Thirty‑six of the bags contained $37,500 each and three contained $23,550, $50,000 and $75,000, respectively. One or other of the appellant and Dandachi wrote the total amount contained in each bag on the bag and also the account details.[25]
10. On 13 March 2019, Dandachi telephoned the appellant and gave him coded instructions to undertake the deposits. The appellant was instructed to take the bags to the ANZ Bank and Commonwealth Bank and to make separate trips to make the deposits. On the same day, the appellant attended an ANZ Bank branch in East Victoria Park and deposited 10 bags of cash into an account in the name of Alpha Protective Services Management Pty Ltd. He then attended an ANZ Bank branch at Cloverdale and deposited 10 bags into an account in the name of Beej Constructions Pty Ltd. He then attended a Commonwealth Bank branch at Victoria Park and deposited 10 bags into an account in the name of Beej Constructions Pty Ltd. He then went to another Commonwealth Bank branch at Belmont and used the express deposit facility to deposit two bags into the account in the name of Beej Constructions Pty Ltd and seven bags into an account in the name of Sovereign Protection Group Pty Ltd. Later that evening, the appellant departed Perth and returned to Sydney.[26]
11. On 24 July 2019, Dandachi was interviewed by the police and made a number of admissions regarding the deposits. He claimed that he thought the money was from a currency trading business, and whilst he did not think the deposits were suspicious, he did wonder where the money came from. He later admitted that after he had deposited money a few times he thought it could be from people trying to avoid paying tax or dealing in drugs. He admitted that he told the appellant to make the deposits in Perth on 13 March 2019.[27]
12. Dandachi cooperated with the police and agreed to give evidence against the appellant. He provided a witness statement for that purpose. That cooperation was recognised by the authorities as having value.[28]

1. Dandachi was sentenced by Troy DCJ on 10 February 2021. After referring to the facts, his Honour noted the following relevant personal circumstances of Dandachi:[29]
   1. At the time of sentencing, he was 38 years old and married with four young children.
   2. He had been a successful businessman and was a person of previous good character.
   3. The risk of reoffending was low and his prospects of rehabilitation were excellent.
   4. He was genuinely remorseful.
   5. The charges contained the whole of his criminal conduct and were not representative of a wider course of conduct.
   6. He continued to offend even after circumstances had raised a suspicion in his mind that the cash was the proceeds of crime.
   7. He committed the offences in the clear expectation of receiving benefits, financial or otherwise (though no benefits could be identified).
   8. The pleas of guilty were evidence of his contrition or remorse for the offending.
   9. Whilst the pleas of guilty were not entered at the very first reasonable opportunity, they were entered at an early stage.
   10. In order to return to Western Australia to be sentenced, he had to undertake COVID quarantine for 14 days before his appearance. That represented an additional hardship.
   11. He suffered depression and anxiety, but it was not suggested that these were causative of the offences.
   12. He had two children who had been diagnosed with autism spectrum disorder. The condition was more intense with his 10‑year‑old daughter, who required constant supervision and assistance.
   13. His incarceration would cause significant hardship to his wife who would have to cope with the children alone, particularly the 10‑year‑old daughter who, the judge said, suffered 'from a profound disability and who needs constant care and attention'. His Honour found that the family circumstances brought the case 'within that rare category where an exceptional hardship, in the truest sense, to your family does become a mitigating factor, and it permits the imposition of a lesser sentence than would ordinarily be the case'.
2. Troy DCJ approached the sentencing of Dandachi in three stages. First, he determined the appropriate sentence for each count, taking into account the facts of the offending and all matters in mitigation except for the guilty pleas and the future promised cooperation. The starting points for the first stage on counts 1 and 2 were 6 months' imprisonment, on count 3 16 months' imprisonment, and on count 4 10 months' imprisonment. His Honour then discounted those notional sentences to take into account Dandachi's guilty pleas. That produced sentences on counts 1 and 2 of 5 months' imprisonment, count 3 of 12 months' imprisonment and count 4 of 8 months' imprisonment. He then reduced those sentences further to take into account Dandachi's promise of future cooperation. That produced sentences on count 1 of 5 months' imprisonment, on count 2 of 4 months' imprisonment, on count 3 of 10 months' imprisonment and on count 4 of 6 months' imprisonment. For totality reasons, his Honour made the sentence on count 1 concurrent on count 3, but the sentences on counts 2 and 4 cumulative on count 3. This produced a total effective sentence of 20 months' imprisonment. His Honour ordered that Dandachi be released after serving 12 months' imprisonment on entering into a recognisance of good behaviour in the sum of $25,000 for a period of 12 months.[30]

1. After summarising the facts of the offence, the learned sentencing judge noted that the appellant received his instructions from Dandachi, and that he had been employed by Dandachi for five years before the offence was committed. He noted that the appellant had pleaded guilty on the basis that, objectively, the money that was deposited was suspected to be the proceeds of crime. That is, that a reasonable person would have suspected that they were dealing with the proceeds of criminal activity. His Honour found that the appellant came to Perth for a short period of time for the purpose of receiving and depositing various cash sums. Whilst the source may have been unknown to the appellant, his Honour said that those sums 'could be reasonably suspected to be the proceeds of crime'.[31]
2. His Honour accepted that there was no evidence that the appellant was rewarded in any particular way. However, he inferred that the appellant would have at least expected advancement in his employment with Dandachi. He referred to the nature of the task undertaken by the appellant and said that there was 'no imaginable legitimate purpose for such activity'.[32]
3. His Honour noted that the Crown accepted that the appellant's role was subsidiary to that of others, however he said that the appellant played an important and instrumental role. That role involved a great deal of trust being placed in the appellant by others in whose interests he acted. His Honour said that the offence was a serious one of its kind, bearing in mind that it involved multiple transactions of large amounts into different banks and various accounts involving a total amount over $1.7 million.
4. His Honour noted the sentencing considerations set out in s 16A of the Crimes Act 1914 (Cth) and the common law principles of proportionality, totality and parity. He then said:[33]

The sentence must be of an appropriate severity, one that adequately punishes you in the interests of personal and general deterrence. I accept that a sentence of imprisonment may not be imposed, that is, with time to serve, or in any event - unless I'm satisfied that no other sentence is appropriate.

1. His Honour referred to the appellant's prior good character, and to character references that had been tendered in that regard. As regards the appellant's personal circumstances and the fact that his wife and child lived in Sydney, he said:[34]

While I'm sympathetic to your family's situation, I do not find it to be a mitigating circumstance. But I do find that a sentence of imprisonment with time to be served will weigh more heavily on you than on others, by reason of the fact that you will be separated from your family, who will not be able to visit you as they would if they were resident in Perth. And they I otherwise find that any hardship experienced by your family that is occasioned by your sentence is merely incidental. It's a consequence of your offending that cannot be avoided.

1. The sentencing judge did not accept that the appellant was remorseful. He noted that in the interview with the pre‑sentence report author, the appellant maintained that he was naïve and had misplaced trust in his employer. However, his Honour found that the appellant could not have failed to be suspicious of the transactions and had not explained his actions in a way that would demonstrate remorse and an acceptance of responsibility.[35]
2. As regards the appellant's plea of guilty, whilst accepting that this was a mitigating factor, his Honour noted that the plea was not made until well after the matter was listed for trial. This limited the benefits to the prosecution. He also found that the plea was entered in the face of what was an overwhelming Crown case. He indicated that he would allow a reduction of 10% from the sentence that would otherwise have been imposed.[36]
3. Bearing in mind the appellant's previous good character and the absence of any other criminal or antisocial tendencies, his Honour was satisfied that personal deterrence did not carry particular weight in this sentencing exercise. He also accepted that the appellant's prospects of rehabilitation were very good. Nevertheless, general deterrence was a main sentencing consideration 'such that a term of imprisonment with time to be served is, I find, the only appropriate sentence'.[37]
4. His Honour then said that he needed to take into account the need for some parity with Dandachi. In doing so, he noted that Dandachi had pleaded guilty at a much earlier stage, had promised cooperation with the authorities, and that his family would suffer particular hardship by reason of two of his children being afflicted with disabilities. His Honour then made the following remarks (which, in part, are the subject of ground 1):[38]

As far as parity is concerned, I'm satisfied that the culpability of Dandachi is much higher than yours. He was your employer. He was involved in dealing with a much greater sum of money in total than you. However, I do consider that failure to order a term of imprisonment to be served would give rise to a legitimate grievance on his part, given his early pleas of guilty and his promised cooperation in the prosecution of the case against you. You're not, therefore to be treated on an equal footing with him. But I do take into account both the relationship that you had with Dandachi, the fact that Dandachi's actions involved a much greater sum of money. But at the same time, I recognise the reduction of sentence that Dandachi was given for his early pleas and his promised cooperation. (emphasis added)

1. The grounds of appeal are as follows:[39]
   1. The learned sentencing Judge erred at law in holding that the parity principle required a sentence of immediate imprisonment to be imposed in order to avoid a justifiable sense of grievance on the part of the co‑offender who had already been sentenced to a term of imprisonment.
      1. On 10 February 2021, the co-offender was sentenced before his Honour Judge Troy, in respect of four counts upon Indictment, to a total effective sentence of 20 months imprisonment, to be released on recognisance of $25,000.00 after serving 12 months immediate imprisonment (T36-37);
      2. The learned sentencing Judge found that the culpability of the co-offender was much higher than that of the appellant (T37);
      3. In particular, this included the fact that the co-offender dealt with a much greater sum of money than the appellant and was the appellant's employer (T37);
      4. Notwithstanding this finding, the learned sentencing Judge considered that failure to order a term of imprisonment with time to be served would give rise to a legitimate sense of grievance on the part of the co‑offender, given his early pleas of guilty and his promised co-operation in the prosecution of the case against the appellant (T37).
   2. The learned sentencing Judge imposed a sentence that was, in all of the circumstances, in breach of the principle of parity insofar as it gave rise to a legitimate sense of grievance on the part of the appellant, having regard to:-
      1. The sentence imposed upon the appellant's co-offender, Mr Dandachi, in respect of the comparable count upon Indictment; and
      2. The overall culpability of the appellant as distinguished by that of Mr Dandachi.

1. As regards ground 1, the appellant submits that that his Honour erred by taking the view that the parity principle required a term of immediate imprisonment to be imposed on the appellant as the failure to do so would give rise to a legitimate sense of grievance on the part of Dandachi. It is contended that the learned sentencing judge relied on the fact that a term of immediate imprisonment had already been imposed on Dandachi in arriving at the conclusion that a term of immediate imprisonment was the only available sentencing disposition in respect of the appellant.[40]
2. As regards ground 2, the appellant submits that the offending by Dandachi in respect of count 4 represented his 'role in instructing the appellant to physically deal with a sum of money in the same manner as the offending for which the appellant was ultimately convicted'. It is suggested that the two offences were directly comparable, 'with Mr Dandachi as the instructor and the appellant acting upon instructions'. For this reason, the appellant contends that the offending the subject of count 4 and the appellant's offence are 'common offending for the purposes of parity'.[41]
3. The appellant submits that Dandachi was more culpable as he was the appellant's employer and that, on balance, their personal circumstances were of relatively equal mitigatory value. It is said that in these circumstances, notwithstanding the different discounts for pleading guilty and Dandachi's discount for cooperation, the sentence imposed on the appellant gives rise to a legitimate sense of grievance. It is said that the notional starting point for Dandachi on count 4 of 10 months' imprisonment does not fairly compare with the notional starting point for the appellant of 13 months' imprisonment (after putting aside the 10% for pleading guilty).[42]
4. At the appeal hearing senior counsel for the appellant accepted that an alternative approach was to compare the total effective sentence imposed on Dandachi with the sentence imposed on the appellant. It was submitted that the sentence imposed on the appellant, when compared to the total sentence imposed on Dandachi, did not properly reflect his different level of culpability.[43]

1. The parity principle is an aspect of equal justice. Equal justice requires that like offenders should be treated alike but, if there are relevant differences, due allowance should be made for them. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done.
2. A sentencing judge dealing with an offender may need to consider parity where other related offenders have already been sentenced. In such a case the concern is to ensure that the sentence imposed does not engender a justifiable sense of grievance in the offender then before the court.
3. The parity principle cannot be invoked for the purpose of increasing what would otherwise be an appropriate sentence so as to avoid a previously sentenced offender feeling a justified sense of grievance. The parity principle is only relevant where a sentence might be such as to engender a justifiable sense of grievance in the offender being sentenced. Any view that a related offender may have of the sentence to be imposed is an irrelevant consideration.[44]
4. In the passage referred to at [40] the sentencing judge said that he considered that a failure to impose a sentence of immediate imprisonment on the appellant would give rise to legitimate sense of grievance on the part of Dandachi. Taken in isolation, that comment may suggest that the sentencing judge took into account the sense of grievance Dandachi may have if any sentence less than immediate imprisonment was imposed. Such an approach would be plainly incorrect.
5. However, when the whole of the sentencing remarks are considered, it is clear that the sentencing judge did not take this irrelevant consideration into account in concluding that an immediate sentence of imprisonment was necessary. The impugned comment was made towards the end of his Honour's sentencing remarks and in the context of referring to the parity principle. By that stage his Honour had already comprehensively set out the facts of the offence and the personal circumstances of the appellant and referred to the fact that a sentence of imprisonment could not be imposed unless it was the only appropriate sentence. He then expressly stated that 'a term of imprisonment with time to be served is, I find, the only appropriate sentence'. That conclusion did not, either expressly or by implication, take into account any view that Dandachi may have of the sentence.
6. When seen in this context the impugned comment was an inconsequential aside or, at best, something that was viewed as buttressing a conclusion that had already been reached. Whilst it would have been preferable had the comment not been made, it is apparent from a reading of the whole of the sentencing remarks that it was not material to the decision to impose an immediate sentence.
7. Whilst I would grant leave to appeal on this ground, it does not succeed.

1. As noted earlier, the critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done.
2. An appellate court may interfere with a sentence on the ground of a marked and unjustifiable disparity, or on the ground of an absence of a marked or justifiable disparity, even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. Parity of sentencing does not, however, require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question.[45]
3. An appellate court can refuse to intervene on the basis of the parity principle where disparity is justified by differences between co‑offenders. This may include differences in relation to age, background, criminal history, general character and the part each co‑offender has played in the relevant criminal conduct or enterprise.[46]
4. As noted, parity is founded on the norm of equal justice. It has been recognised that that norm may be engaged by a marked disparity in the respective sentences imposed on co‑offenders in relation to a single common offence, or in respect of the total effective sentences imposed in relation to multiple common offences, even though one, or both, of the co‑offenders was sentenced for other offences. The basic notion underpinning parity as a distinct ground of appellate intervention is the desirability that 'persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence'.[47]
5. The parity principle is not confined to offenders who are charged with the same offence in respect of the same criminal conduct. It may arise in respect of offenders who commit different offences in respect of the same criminal enterprise. In Green, French CJ, Crennan and Kiefel JJ said:[48]

In Lowe v The Queen and in Postiglione v The Queen, this Court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged. (footnotes omitted)

1. In Jimmy v The Queen,[49] Campbell JA noted that considerations of parity had been recognised as being difficult to apply where co-offenders are charged with significantly different offences. His Honour then said that the parity principle had been applied in cases where multiple offenders had participated in a common criminal enterprise but not committed the same crime:

[U]nequal treatment that is so great as to bring about a justifiable sense of grievance can sometimes arise between participants in a common criminal enterprise who have committed different crimes. In my view there is no obstacle of the type the Crown submits to the parity principle being applied simply because a case is one in which the sentence by comparison with which the sentence under appeal is sought to be reduced was for a different crime.

There are significant limitations, however, on reducing a sentence on the basis of that of a co-offender who has committed a different crime. At least some of the limits on the use of the parity principle in such a case are:

1. It cannot overcome those differences in sentence that arise from a prosecutorial decision about whether to charge a person at all, or with what crime to charge them: R v Howard; Wurramarba; R v Formosa.
2. If it is used to compare the sentences of participants in the same criminal enterprise who have been charged with different crimes, there can be significant practical difficulties. Those practical difficulties become greater the greater the difference between the crimes charged becomes, and can become so great that in the circumstances of a particular case a judge cannot apply it, or cannot see that there is any justifiable sense of grievance arising from the discrepancy: R v Gibson; R v Howard; R v Formosa.
3. It cannot overcome differences in sentence that arise from one of the co-offenders having been given a sentence that is unjustifiably low: R v Armstrong; R v Diamond; R v Rexhaj; R v Ismunandar.
4. There are particular difficulties in an applicant succeeding in a disparity argument where the disparity is said to arise by comparison with the sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the applicant: Krakouer; Pham; Woodgate. See also R v Stanbouli ... However R v Nguyen stands as one example where that result arose. (citations omitted)
5. Jimmy was also a case involving money laundering offences. In that case, the appellant and a co‑offender both engaged in making deposits on behalf of a crime syndicate, but each of them had undertaken their roles separately from the other. Notwithstanding this, the Court of Criminal Appeal of New South Wales held that in the circumstances, they were both parties to the same criminal enterprise and that the parity principle had application (though the appeal was dismissed).
6. It is apparent from Green and Jimmy that the parity principle is not confined to cases where co‑offenders are jointly charged or charged with the same offences. The application of the parity principle is concerned with substance, rather than form. Offenders who are part of the same criminal enterprise may rely on the parity principle because there is a meaningful connection between their offending. Participation in the same criminal enterprise creates a reasonable expectation that the sentences imposed on participants will bear some proportionality to each other. However, this should not operate to obscure the difference between the application of the parity principle and more general principle of ensuring consistency in sentencing outcomes for unrelated offenders. Whilst the parity principle is concerned with actual outcomes and the avoidance of a justifiable sense of grievance in respect of co‑offenders, the more general principle is concerned with ensuring consistency in the application of sentencing principles.
7. The parity principle can arise in three scenarios (for this purpose I will use the term 'co-offenders' in a broad sense as including offenders who commit different offences as part of the same criminal enterprise):
   1. Where co-offenders whose circumstances are materially the same receive different sentences.
   2. Where co-offenders whose circumstances are materially different receive the same sentence.
   3. Where co-offenders whose circumstances are materially different receive different sentences, but the difference does not properly reflect the degree of difference.
8. All three scenarios require an assessment of the circumstances of each of the co-offenders, both as regards their level of culpability and their personal circumstances. Usually this will be a product of the factual findings made at the respective sentencing proceedings. The first and second scenarios will produce a ready answer if the predicates are established. The third scenario has an additional level of complexity because it requires an assessment of whether the difference in the sentences is sufficient. Because sentencing is a discretionary exercise it cannot be expected that in any individual case there will be a single appropriate difference for cases falling into the third category. The question, then, will not be what the correct difference is, but whether the difference in the sentences actually imposed is such as to create a justifiable sense of grievance in one of the co-offenders. This is a question that requires the exercise of a judgment that cannot be reduced or minutely analysed. It essentially involves a concern to do justice as between the co-offenders. In exercising that judgement an appeal court must be mindful that it can only interfere with a sentence if error is established.
9. In the present case, there are obvious difficulties in applying the parity principle in respect of the different instances of criminal conduct. Even accepting that the principle applies because both the conduct of the appellant and the conduct of Dandachi arose out the same criminal enterprise, the differences between their offending conduct cannot be ignored. In this case there was no common offending. Although both the appellant and Dandachi were involved in the offending of the other as a matter of fact, they have not been convicted of that other offending and cannot be punished for it.
10. There are two approaches advanced by the appellant. The first is to compare the appellant's sentence with the sentence of Dandachi's on count 4. It is suggested by the appellant that his criminal conduct is comparable to that of Dandachi on count 4 for the purposes of the parity principle.[50] It is contended that the lower sentence imposed on Dandachi on that count gives rise to a justifiable sense of grievance.
11. Whilst there are similarities between the appellant's criminal conduct and that of Dandachi on count 4, there are obvious differences:
    1. The appellant's offence occurred over three days from 23 ‑ 26 April 2019, whereas Dandachi's offence occurred on one day, 13 March 2019.
    2. The appellant's offence involved 51 deposits at four different bank branches, whereas Dandachi's offence involved 39 deposits at four different branches.
    3. The total amount of cash involved in the appellant's offence was $1,762,480, whereas the total amount involved in Dandachi's offence was $1,498,550.
12. Even taking into account Dandachi's more senior role in the broader criminal enterprise, the objective features of the appellant's offence are more serious than Dandachi's count 4. All other things being equal, it would be expected that the appellant's offence would attract a higher sentence. Furthermore, other things were not equal, as I will demonstrate later in these reasons.
13. The second approach is to compare the appellant's sentence with the total effective sentence imposed on Dandachi. Plainly, as the sentencing judge acknowledged, Dandachi's total criminal conduct was more serious. It involved four offences, a much larger total amount of cash and Dandachi was in a more senior position, in that he was the appellant's employer. On the other hand, what Dandachi actually did was comparable in nature in that (in respect of the first three counts) he personally received the cash and deposited it on the instructions of a person in the syndicate. He had no involvement with the shell companies into whose accounts the money was deposited. He may have been higher in the money laundering enterprise hierarchy, but not by much.
14. All of those factors, as would be expected, resulted in a higher total sentence for Dandachi. The difficult question is whether the total sentence imposed on Dandachi was such as to create a reasonable expectation on the part of the appellant that he would get a lower sentence than he did? Put another way, whether the sentences imposed fail to properly reflect the differences in the culpability and personal circumstances of the appellant and Dandachi. That is not an exercise that is susceptible of any mathematical calculation. Whilst the number of charges and the amount of cash are relevant considerations, the difference between the sentences cannot be determined by reference to those factors alone.
15. It is also an exercise that requires consideration of the differences between the mitigating factors and the personal circumstances of Dandachi and the appellant. Relevantly, they are:
    1. That it was accepted that Dandachi was genuinely remorseful, whereas the sentencing judge did not accept that the appellant was remorseful.
    2. The factor of exceptional hardship to Dandachi's family was a mitigating factor in his case, whereas that factor was not present in the case of the appellant.
    3. Dandachi made admissions when interviewed by the police and entered his pleas of guilty at a much earlier stage than the appellant, resulting in a higher discount (approximately 22%, as compared to 10% for the appellant).
    4. Dandachi agreed to cooperate with the authorities. His future cooperation was a promise to give evidence against the appellant if the appellant's matter went to trial. That cooperation had real value and resulted in a reduction in his sentence.
16. Even if, as the appellant suggests, the discounts for pleading guilty and cooperation are put aside and the notional starting points are compared, it is not possible to conclude that the appellant has grounds for a justifiable sense of grievance. The notional starting point in respect of the appellant must have been in the vicinity of 13 months' imprisonment, whereas the notional starting point for Dandachi on count 4 was 10 months' imprisonment. That difference can be explained having regard to the more serious circumstances of the appellant's offence and the differences in personal circumstances (including remorse, family hardship and past cooperation). If the total effective sentence of Dandachi is used as the comparator, then the notional starting point was 32 months' imprisonment. That starting point also must have taken into account the personal circumstances referred to. I am unable to conclude that the relativity between the sentences fails to properly reflect the different degrees of culpability once those personal factors are also taken into account.
17. I accept that the small numbers involved in this sentencing exercise affords no impediment to the application of the parity principle. It is a function of the fact that the maximum penalty for the offence in question is 3 years' imprisonment. If the parity principle has been breached then it will be no bar to appellate interference that any adjustment to be made is relatively minor. However, the onus remains on the appellant to establish that the parity principle has been infringed. In my view he has not succeeded in that regard.

1. In my view, whilst I would have granted leave to appeal on both grounds, neither of them should have succeeded and I would have dismissed the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606.

[2] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295.

[3] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462.

[5] Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342 [13] - [54] (Buss P), [160] ‑ [184] (Beech JA), [198] ‑ [210] (Pritchard JA).

[44] Tomov v The Queen [2011] WASCA 189 [105] ‑ [107] (Buss P); R v Smith [2022] QCA 89 [70] (Applegarth J); R v Anthony [2020] QCA 79, 6 (Sofronoff P).

[46] Ngo [39]; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [31].

[47] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609.

[49] Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540, 588 ‑ 589.

[50] This approach is open - see Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342.